Rep. Elijah Cummings (D-MD) on a renewed push by President Obama to pass new gun control legislation.
Understanding the Right to Bear Arms
“A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” So reads the Second Amendment to the Constitution.
At the time these words were written, terms like “well regulated militia” and “to keep and bear arms” were reasonably clear, but today, their implications are hotly contested. In this guide, we will look at the history and meaning of the Right to Bear Arms.
The People’s Alternative: Militias
In the minds of Revolutionary Era Americans, a standing army was the devil incarnate. Before and during the War for Independence, the King’s Army had oppressed the nation’s inhabitants. The new rules had to prevent that from ever happening again.
The King’s Army was an ocean away and couldn’t be relied on for protection against Indians who lived nearby or French settlers and trappers just to the north. British colonists had to protect themselves, and to do this they gathered as citizen-soldiers in groups called militias. Militiamen collected arms, ammunition, and powder, and they drilled on a regular basis. “Militia days” served as anchors for the social and political life of each community. Men not only readied themselves for war, but also drank together and talked politics. Sometimes, too, they enforced law and order because there was no separate police force. Years later, as tensions with the Mother Country mounted, militias protected citizens from a new threat: professional soldiers in the British Army.
Unlike standing armies, militias elected their own officers, at least at the local level. During the Revolutionary War, the democratic structure proved both a blessing and curse. It allowed people to “own” their own military organization, but officers were beholden to the men who elected them and were not always obeyed. Only because they were the embodiment of the people were militias trusted with military authority. They were to be well regulated, official arms of the government, not spontaneous mobs.
Arms, Armies, and the Militia in State Constitutions
Several of the new state constitutions addressed the need for military protections. These were their dominant concerns:
• Standing armies are “dangerous to liberty” and “ought not to be kept up.” Raise an army in an emergency, but stick with the militias for peacekeeping—that was their thinking.
• Soldiers should “not be quartered in any house” without “the consent of the owner.”
• The military should be “under strict subordination” to “civil power.”
• The people had both the right and the duty to “bear arms” for “common defence” of the “state,” “free state,” or “free government.”
Pay attention here, because the exact wording in these and related documents loom large in the arguments over the Second Amendment. While all states spoke in some manner of the need for common defense, two used the term “well regulated militia,” which would turn up later in the Second Amendment. Five used the words “bear arms” or “bearing arms,” while one, Massachusetts, referred to the “right to keep and bear arms,” another Second Amendment term.
Other terms used in these declarations did not make it into the Second Amendment. Pennsylvania’s constitution said “the people have a right to bear arms for the defence of themselves and the state,” but the addition of “themselves” fell by the wayside when Madison drafted the Bill of Rights 13 years later. Thomas Jefferson wanted Virginia’s Declaration of Rights to say, “No freeman shall be debarred the use of arms within his own lands or tenements.” That wasn’t adopted. Two towns in Massachusetts wanted to include individuals, not just militias. Northampton complained that the guarantee of the “right to keep and bear arms,” as written in the state Declaration of Rights, was not expressed with “that ample and manly openness and latitude which the importance of the right merits.” The townsmen suggested a more expansive wording: “The people have a right to keep and bear arms as well for their own as the common defence.” The town of Williamsburgh echoed this idea. This language didn’t make the final cut either.
Today, people who argue that the Second Amendment applies to individuals point to the Pennsylvania measure, Jefferson’s proposal, and the suggested amendments by the two Massachusetts towns. These passages reveal how Revolutionary Era Americans felt about self defense, they say. On the other hand, those who argue that the Second Amendment was meant only for common defense remind us that the framers rejected such wording, and insist that if they didn’t want it in the Second Amendment, we shouldn’t try to stick it in either.
An Individual or Collective Right?
There are three ways of interpreting the Constitution: “original intent,” “original meaning,” and a “living Constitution.” So let’s use these methods now, starting with “original intent”—what did framers who wrote the Constitution intend?
Those who think the amendment does protect an individual’s right to bear arms note that other amendments clearly guarantee individual rights, such as free speech or trial by jury. This right is no different and it certainly applies to individuals. But those who feel the amendment does not protect an individual right to carry arms say that the members of Congress, who debated and passed the measure, talked only about the danger of standing armies and the need to strengthen militias. Those had been the issues at the Constitutional Convention as well. It’s all there in the written record. The discussion was never about an individual’s right to bear arms, so that couldn’t have been the purpose for this amendment.
On to the second way of interpreting our Constitution, “original meaning”—how was the language within the amendment understood at the time? What did the people think they were signing on to?
Supporters of the individual interpretation point to various documents, like the minority report of the Pennsylvania Ratification Convention. That document tried to guarantee the people’s right to bear arms “for the defense of themselves and their own state, or for the purpose of killing game.” They also cite other passages like this, showing that people at the time valued their right to keep and use arms in capacities that extended beyond militia participation, such as protecting their own homes.
But those supporting the collective interpretation say we have to examine the language closely. Like “a call to arms,” the terms “keep arms” and “bear arms” are military references. They make no sense when applied to an individual. “A person does not bear arms against a rabbit,” they say, “or even against a criminal.” As for the spotty references to early Americans wanting guns for hunting and personal protection, they respond bluntly: “So what?” If a minority of representatives at a state convention asked for a hunting guarantee, the majority never did. Hunting matters were covered in state laws, not Constitutional amendments.
How can we apply any of this to conditions today? According to the “living Constitution” method, we should try to embrace the underlying values expressed in the Second Amendment, and then apply these to the current realities. This seems a nearly impossible task. Arms today include rapid-fire assault rifles, not just single-shot muskets with powder and a ramming rod, and the militia is no more. The National Guard, the militia’s technical successor, does not represent “the body of the people” or play such a central role in protecting “the security of a free state.”
That said, a “living Constitution” approach can bridge the partisan divide. Whether or not the Second Amendment addressed the issue of private ownership, Founding Era citizens would not argue with the right to own a gun. But all states had game laws and controlled the use of guns. In cities, fire wardens regulated gunpowder storage for fear of explosions. People in “actual rebellion” could be disarmed. Private rights were always balanced by public safety. In bringing the laws of those by-gone days forward, we can embrace the fundamental wisdom of the Founders on this score. We can have our guns and regulate them, too.
Unknown – anonymous
There are no individual right to bear arms. States should controls game laws and controlled the use of guns for gaming. All other guns should be taken away. Maybe John Lennon would still be with us – was it not that long ago we were trying to ban hand guns. Wow this is nuts; some these nut-cases will have their own armies soon if not now; then these people if in “actual rebellion” will need to be disarmed. Then we would need to bring in our government forces in some form; thus what they have been arguing will become true in their minds; even if they are hate groups, and such... it is lunacy... People whom thing they need to have these guns, are insane, thus should not have them, they were never to have them – the 2008 case went the was wrong; Stevens and the others with him were right; they call what is going on now...
Above – not – guns in Mexico come from our gun shows – the drug demand from us – band guns & btax pot and the whole thing goes away
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